People v. Spencer

• Decision Date: 08 April 1980
• Parties: PEOPLE of the State of New York, Respondent, v. Robert A. SPENCER, Appellant. PEOPLE of the State of New York, Respondent, v. Dean J. HURLEY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 605

426 N.Y.S.2d 605

74 A.D.2d 77

PEOPLE of the State of New York, Respondent, v. Robert A. SPENCER, Appellant.

PEOPLE of the State of New York, Respondent, v. Dean J. HURLEY, Appellant.

Supreme Court, Appellate Division, Fourth Department.

April 8, 1980.

Palmiere, Passero & Crimi, Rochester, for appellant Spencer (Charles F. Crimi, Rochester, of counsel).

John J. LaDuca, Rochester, for appellant Hurley.

Stuart O. Miller, Dist. Atty., Seneca Falls, for respondent (Karen McGee, Schenectady, of counsel).

Before CARDAMONE, J. P., and SIMONS, SCHNEPP, DOERR and MOULE, JJ.

CARDAMONE, Justice Presiding.

We must decide whether the warrantless search of a sealed cardboard carton found in the trunk of defendant Spencer's automobile which at the time was being operated by defendant Hurley was illegal under the facts of this case. We believe that it was.

On July 26, 1977 the New York State Police arrested David Hudson for possession of marijuana. During questioning, Hudson revealed that $2,250, which he possessed when arrested, was to be partial payment for 15 pounds of marijuana which he had agreed to purchase from defendant Spencer. In return for "consideration" on the possession charge pending against him, Hudson allowed the police to overhear and to tape record a telephone call he made to Spencer to make arrangements for delivery of the marijuana. Spencer agreed to deliver 10 pounds of marijuana at the Waterloo Interchange of the New York Thruway. Spencer also stated that, since he was ill, he would have Hurley make the delivery for him using his automobile. Hudson described for the troopers Spencer's automobile and was taken by the troopers to the Waterloo Interchange to await Hurley's arrival.

About an hour later, a maroon or dark red Oldsmobile Cutlass exited the thruway and stopped a few feet south of the exit ramp. Hudson identified that vehicle as Spencer's and almost immediately a patrol car drove up behind the parked auto. Stepping out of the patrol car, a trooper approached the suspect vehicle on foot, and as he did so, he observed that the driver was seated, with the engine running, looking at a map. When the trooper asked the driver if he was lost, the driver replied that he was, and upon request, he produced his license and the auto's registration. The license bore the name of Dean Hurley, and the registration had been issued to Robert Spencer.

The trooper walked to the front of the car to check the registration number against the license plate. Continuing around to the passenger's side, he looked inside the vehicle where he saw a bent coat hanger and some cut wires dangling from beneath the dashboard. At that point, the trooper asked Hurley to step outside the car, and he was read the Miranda warnings. When Hurley inquired as to the reason for his arrest, the trooper, mindful of his supervisor's instructions to protect the informant, replied that he was under arrest for grand larceny of the automobile.

The trooper frisked Hurley for weapons and asked him to empty his pockets. After Hurley had purported to do so, however, the trooper noticed that the suspect had neglected to surrender a trunk key which was outlined on his pants pocket. Retrieving that key, the trooper opened the trunk and there discovered a cardboard carton that measured approximately 16 inches square. The box was sealed, both lengthwise and crosswise, with strips of tape and in no way revealed the character of its contents. Nevertheless, using either a sharp knife or his hands (he could not recall which), the trooper broke into the sealed container and found that it was filled with white plastic bags which contained marijuana.

The defendants were subsequently charged with criminal possession of a controlled substance in the fifth degree and conspiracy. After a suppression hearing, the court denied defendants' motion to suppress the marijuana, and after the denial of a further motion to dismiss on speedy trial grounds, the defendants both plead guilty to the crime of criminal possession of a controlled substance in the sixth degree.

To be lawful, a warrantless search must fit into one of the few carefully drawn exceptions to the warrant requirement (Arkansas v. Sanders, 442 U.S. 753, 758-760, 99 S.Ct. 2586, 2590-2591, 61 L.Ed.2d 235; Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576). The burden is always on the party seeking the exception to show the need for it (United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59). Here the facts do not support a claim that there was consent for the search, that the marijuana was in "plain view," that it was seized in "hot pursuit," that it was discovered during the course of an "inventory search," or that the sealed box was searched incident to a lawful arrest. The search may be justified, therefore, only if it can be brought within the confines of the "automobile exception" (see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543).

Since the Supreme Court decided United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 it has been clear, however, that an exception for the automobile developed not only because the motor vehicle is inherently mobile but also, and perhaps primarily, because there is a "diminished expectation of privacy which surrounds the automobile" (433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538). In that case the Court refused to uphold the warrantless search of a 200 pound footlocker which had been seized from the trunk of an automobile; "(o)nce the federal agents had seized it . . ., there was not the slightest danger that the footlocker or its contents could have been removed before a valid search warrant could be obtained" (433 U.S. 1, 13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538). And as the Court observed, the expectation of privacy associated with a repository for personal effects would be substantially greater than that associated with a motor vehicle whose primary function is transportation. Chadwick, of course, involved a situation where the police officers already had probable cause to believe that the footlocker contained contraband for some time prior to the time when they observed it being placed in the trunk of a waiting automobile. In addition, while the footlocker was eventually seized from the open trunk of that automobile, no attempt had ever been made to move the vehicle. To be sure, the case was not and was not claimed to be a traditional automobile search case. To some that may have appeared to be an important distinction (see e. g., United States v. Ochs, 595 F.2d 1247, 1254-1255 (C.C.A.2d 1979)).

Recently it has become apparent that this distinction is not a valid one (Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235, supra). In Sanders the police had probable cause to believe that the contraband was being driven away in a particular taxi and there could be no question, therefore, but that "the police were justified in stopping the vehicle, searching it on the spot, and seizing the suitcase they suspected contained contraband" (442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235). Nonetheless, after it had reiterated that " '(t)he word "automobile" is not a talisman in whose presence the Fourth Amendment fades away and disappears' " (442 U.S. 753, 760 n. 7, 99 S.Ct. 2586, 2591 n. 7, 61 L.Ed.2d 235, quoting Coolidge v. New Hampshire, 403 U.S. 443, 461-462, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564) and had otherwise made clear that the extent to which the police may conduct warrantless searches of sealed containers and packages is not at all affected by the fact that those objects might have been seized during the course of a valid automobile search, the Supreme Court affirmed a state court's order which had suppressed the evidence found during the ensuing warrantless search of the suitcase. ¹ As in Chadwick, it did so because as a general rule, the need for a warrantless search would end once the police have seized the object to be searched and have it securely within their control; and significantly because the expectation of privacy associated with the object is not necessarily any less simply because it has been placed in an automobile for transportation rather than having been transported by some other means or stored in some other location (442 U.S. 753, 763, 99 S.Ct. 2586, 2593, 61 L.Ed.2d 235).

The...